https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10382

Republic v Kilonzi & 2 others (Criminal Case E002 of 2025) [2026] KEHC 10382 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 10382 (KLR) Republic of Kenya In the High Court at Garissa Criminal Case E002 of 2025 JN Onyiego, J June 26, 2026 Between Republic Prosecutor and John Joseph Kilonzi 1st Accused Bosco Mumo Kithumbi 2nd Accused Alex Muli Makau 3rd Accused Judgment 1.The Accused Persons herein are charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that, on the 15th day of February, 2025 at Bulla Sub-location, Bulla Ndege Location, Habbaswein Sub-county within Wajir County, in the Republic of Kenya, jointly murdered Abdi Hassan Jelle alias Abdi Turkan. 2.Having denied the charge, the case proceeded to full trial with the prosecution adducing evidence from 10 witnesses in its endeavour to discharge the burden of proof beyond reasonable doubt. 3.PW1 Bashir Abdikadir told the court that on 15-2-2025, at 2.30.a.m, he was asleep in his house when he received a call from his driver Daud Abdalla informing him that his shop had been broken into and his watchman was missing. He proceeded to the shop where he found many people. The gate, main door and the store pad locks were broken into. Upon checking round, he noticed the phone of his watchman, his shoes and canvas on the floor. 4.Upon conducting search, they found the body of the watchman inside a cement store. Upon observation, they noticed that he had two cut wounds on the neck. Having suspected accused 1 and 2, they reported to the police. That they suspected the two after following traces of blood from the scene to the house where they were staying. That inside that house they found accused 2 and 3 who informed them that accused 1 who had sustained injuries had gone to the hospital. They then proceeded to the hospital and had the 1st accused arrested. 5.PW2 Mohamed Aden told the court that on 14-2-2025, he closed the shop the deceased was guarding. At 2.30 am, he received a call informing him that their shop had been broken into. That he proceeded to the shop which was broken into and upon search they found the watchman had been killed. That the police visited the scene and took the body away. 6.He told the court that people followed traces of blood up to some house where they found accused 2 and 3. When the police asked the two whose blood it was, the two answered that he had gone to the hospital. They proceeded to the hospital and found accused one being treated of injuries he had sustained on the hand. He was then arrested. 7.PW3 Abdi Ahmed Mohamed stated that on 15-2-2026, at 2.00 a.m, while chewing miraa, he heard some noise. Upon responding, he proceeded to the scene where Bashir’s shop had been broken into. That together with Bashir, they looked for the night watchman and found his body inside a cement store. That they followed traces of blood up to some house where they arrested two occupants. Upon enquiry where the blood came from, the two told them that the injured person had gone to the hospital. 8.PW4 Ibrahim Dagane received a call that Abdi Hasssan the deceased herein had been killed. He proceeded to the scene from where people followed traces of blood up to some house where accused 2 and 3 were arrested. Upon being asked who the owner of the blood was, the two named accused 1 who had gone to the hospital. That accused 1 was arrested from the hospital while undergoing treatment. 9.PW5 a Clinical Officer treated John Kilonzi (accused 1) at Habaswein Hospital. That the patient had a dislocation on the shoulder. He also had two cuts on the left arm. He classified the injuries as harm. 10.PW6 Mohamed Kasi was at his home on 15-2-2025. At 0230hrs, he heard his neighbor Shaqara shouting thief! thief! He then heard Shaqara saying that they were breaking the shop. Consequently he called the shop owner who responded. He also proceeded to the scene where they found the shop broken into and the watchman killed and the body lying inside a cement store. They reported to the police who collected the body. 11.He stated that they traced blood stains up to some home where they found two boys who upon interrogation stated that the injured person had gone to hospital. They followed the injured person (accused 1) up to the hospital where he was undergoing treatment. The three were then arrested. 12.PW7, Dr. Hassan Salat did postmortem on the deceased’s body which had deep cut wounds on the back of the head. There were bruises on the wrists consistent with being tied with a rope. The cause of death was the head cuts. 13.PW8 PC Nicholas Selemei of Habaswein Police Station received a murder report. He visited the scene where he found a watchman dead with his hands tied with a rope backwards. He took the body to the hospital. He was later called by elders who informed him that they had traced and arrested the killers whom people wanted killed. He proceeded to the house where the two boys were. That the two boys led them up to the hospital where their friend was being attended. That he arrested accused persons and later charged them. That a total of 8 people were arrested but the rest were released after investigation. 14.On cross examination, he stated that they arrested and charged the accused because of the injuries and pressure from people. 15.PW9 CIP Mohamed received the murder report from PW1. He visited the scene and took the body to mortuary. Later, he received a call that some suspects had been arrested. He proceeded to the home where the suspects were. He corroborated the claim that they were led by blood stains up to that house where they found two of the suspects who led them to hospital where their colleague was being treated. 16.PW10 PC Joel Wanyonyi merely recited the testimony of the witnesses herein. He stated that after the incident was reported, the Somali Community went round arresting 7 Kambas accusing them of the murder. 17.On cross examination, he stated that the accused were arrested because they were unable to explain themselves as to where they were on the material night. 18.In their defence, accused 1 (DW1) denied the offence. He stated that he is a casual worker who on 15-2-25, left his house at 6.am for his place of work. On the way, he came across so many people. After walking for a short distance past those people, he heard them shouting “whenever you see a kamba kill them”. Suddenly, he was attacked by two of those people who had a panga and a knife. That he sustained injuries on both hands and the shoulder. 19.He stated that as he ran away, he saw those people attack one Mwinzi Kinyaika who ran away as well. He stated that it was Mwinzi who told him to run for safety. That he followed Mwinzi who ran towards some plot in which he knocked some house and an occupant whom he came to know as Bosco (Accused 2) opened the door for them. 20.He stated that he did not know why he was being attacked. That it was Bosco who took water and cleaned his hands and advised him to report to the police or go to the hospital. That he later found himself in hospital and saw police officers who arrested him. 21.DW2 Bosco Mumo (Accused 2) equally denied the offence. He stated that on the 15-2-205 at around 6.00 Am, he heard a knock on his door. That upon opening, he saw two men with one bleeding from his fingers. Upon inquiry, the injured man claimed that he had been attacked by several people. That he cleaned the man and advised him to report to the police and go to the hospital. He stated that later, he saw Somali elders following blood stains up to his house as they enquired as to the whereabouts of the injured man. After telling them that the injured person had gone to the hospital, someone known as chief led him to Alex’s house (Accused3). They were then arrested as suspects. 22.DW3 the 3rd accused denied the charge. He stated that on 15-4-2025, he was sleeping in his house when a group of people knocked his door and demanded to know where the injured man was. He denied knowledge of such man. That those people arrested him and then proceeded to arrest his neighbor Bosco. They were then taken to the hospital where he saw Joseph (accused 1) who was also arrested. 23.In submission, Ms Nyauncho Prosecution Counsel filed her submissions dated 27th April 2026 contending that prosecution has proved its case beyond any reasonable doubt by establishing that the elements to prove the offence of murder were established to be; death occurred; that it was caused through an unlawful act; that the assailants were identified and that; there was malice aforethought established. In that regard, the Court was referred to the case of Olalo vs Republic (2026)KECA593KLR. 24.As to who committed the offence, it was submitted that there was sufficient circumstantial evidence in that the traces of blood were followed from the scene of murder up to the house where accused were found and arrested. 25.On the other hand, Mr.Owino for the defence filed his submissions dated 23-4-2026 contending that the prosecution had failed to prove its case beyond any reasonable doubt. Reference was made to the case of Republic v Daniel charo Katana (2021)e KLR where the Court emphasized that the State has a duty to discharge its burden of proof. Learned counsel opined that the prosecution’s case was full of contradictions which were not reconcilable. 26.Learned counsel further submitted that prosecution case was based on speculation and conjecture as there was no eye witness. That the circumstantial evidence relied on does not establish the threshold for proof of murder. In that regard the court was referred to the case of Sawe v Republic (2003) KLR where the Court held that suspicion however strong does not provide a basis for finding somebody guilt. 27.I have considered the evidence tendered by the prosecution and defence. It is trite that it is the duty of the prosecution to prove the guilt of an accused beyond reasonable doubt. See Woolmington vs DPP [1935] AC 462. The only issue for determination is whether the prosecution discharged the burden of proof against the accused persons that they murdered the deceased. 28.The offence of murder is defined under Section 203 of the Penal Code as:‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder’. 29.The prosecution thus must establish the following essential ingredients:i.That the deceased died.ii.That his death was unlawfully caused.iii.That the death was actuated by malice aforethought.iv.That the accused was the assailant. 30.The above position was held in the case of Nyambura & Others vs Republic (2001) KLR355 and Olalo vs Republic(supra). 31.Regarding the question whether the deceased died, the evidence of the Doctor PW7 confirmed that the deceased had sustained two deep cuts at the back of the head which were still actively bleeding. There were obvious bruises on the writs consistent with being bound by a rope. The cause of death was head cuts caused by a sharp object. 32.From the above evidence, there is no doubt that the deceased died out of head cuts which was unlawfully caused. 33.The critical question is; who was the culprit? Prosecution contended that the accused persons were the assailants because a group of people followed traces of blood from the scene of murder up to the house where the accused were about one kilometer away. From the evidence on record, nobody saw the accused attack the deceased. In short, there is no direct evidence connecting the accused persons with the death of the deceased. 34.Therefore, prosecution is entirely relying on circumstantial evidence that traces of blood led them from the scene of murder up to the house where the accused were arrested. 35.It is clear from the evidence on record also that the circumstantial evidence relied on does not conclusively connect the accused with the offence. See the case of Ahamad Abolfathi & Another vs Republic (2018) eKLR where circumstantial evidence was elaborated thus;“Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence.” 36.In the case of Sawe v Republic (2003) KLR 364, the Court had this to say on circumstantial evidence;“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other co-existing circumstances weakening the chain of circumstances relied on.” 37.The only evidence relied on to arrest the accused was the allegation that the people who responded to the attack of the deceased followed blood traces from the scene of murder to the accused person’s house where they found accused 2 and 3 and upon asking them who the injured person was in that house, they said it was Kilonzi (accused 1) who had gone for treatment. Accused 2 stated that he was attacked while on his way to his place of work by Somalis who were chanting that ‘ ukiona mkamba huua’. That he ran away with accused 2 up to accused three’s house for safety while bleeding. Accused 2 and 3 corroborated his testimony. 38.The defence of the accused persons is persuasive even from their general demeanour and indeed creates reasonable doubt. PW8 the Investigating Officer stated on cross-examination that they arrested the accused because of tension. That he had arrested 8 people but they released others. His testimony was corroborated by PW10 PC Joel Wanyonyi who stated that after the incident was reported, the Somali Community went round arresting 7 Kambas accusing them of the murder. 39.On cross-examination, PW8 stated that the accused were arrested because they were unable to explain themselves as to where they were on the material night. 40.From this evidence, it would appear like a case of suspicion of certain people that is why 7-8 people were arrested at random. 41.It is trite that the standard of proof in a criminal case is so high such that mere suspicion or speculation does not form the basis for conviction. Life is precious but one’s liberty is also paramount. For a court to find a conviction, there must be absolutely no iota of doubt in the prosecution case. In the instant case, it is probable and indeed palpable that the 1st accused was a victim of mob attack based on tribal prejudice. 42.The claim that people followed blood traces is also questionable as police officers who visited the scene first and took the body to mortuary did not trace such blood. If that were true, then one community could not have gone on rampage threatening another community hence arresting people on suspicion. The court was not told why and what made the other suspects who were arrested released. 43.In nutshell, the evidence on record does not strongly point at the accused as culprits. On a benefit of doubt, I do not find the circumstantial evidence relied upon to connect the accused with the offence. If that were true, then one community could not have gone on rampage threatening another community hence arresting people on suspicion. The court was not told why and what made the other suspects who were arrested released. 44.As to malice aforethought, the same is spent as the element of causation has been proved. There was no proof of malice aforethought as the accused were not the assailants. For the aforesaid reasons, it is my finding that prosecution has failed to prove its case to the required degree. Accordingly, the accused are hereby acquitted of the charge of murder for lack of evidence. Right of Appel 14 days. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26TH DAY OF JUNE 2026..........................................J. N. ONYIEGOJUDGE